H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA.

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FIRST APPEAL NO.411/2007.

DATE OF DECISION: 14.7.2009.



In the matter of:



Sh. K.D. Sharma son of Sh. Ved Parkash, Pensioner residing at Plot No.9, Near mount Carmel School, Rakkar Colony, Una, Himachal Pradesh.

… … Appellant/Complainant.



Versus



1. The Member Secretary, Special Area Development Authority, Una, Himachal Pradesh.

2. The Director, Town and Country Planning Department, Shimla, Himachal Pradesh.

3. The Secretary (TCP) to the Government of Himachal Pradesh, Shimla.

4. The State of Himachal Pradesh through Collector, Una, H.P.



5. Shakti Chand………

6. Hem Raj, Sons of Smt. Shamsher Devi(No.6 ordered

7. Kuldeep Singh……. to be deleted

Vide this order)

8. Smt. Sureksha Devi Wd/O Shri Kushal Singh.



All residents of Village Jalgran, Muhala Upper Muhal, Tehsil and District Una, H.P.

… …. Respondents/Opposite Parties.

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Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekhar Sharma, Member.



Whether approved for reporting? No



For the Appellant: Mr. Rajan Kahol, Advocate, alongwith the

Appellant who has been identified as such

By Mr. Kahol.

For the respondents: Mr. Anoop Sharma, ADA, for respondents 1 to 4 alongwith Ms Mukta, Law Officer, from the office of Respondent No.2.



Respondents 5, 7 & 8 are present in person.

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O R D E R



Justice Arun Kumar Goel (Retd.), President (Oral).



1. It has been stated by respondents No.5 7 & 8 who are present in person, that Shri Hem Raj has since expired. His name is ordered to be deleted from the array of respondents. Affidavit of respondent No.2 has been filed and it was stated by Mr. Anoop Sharma, learned ADA that this may be read on behalf of respondent No.3 as well. This statement is accepted and ordered accordingly.



2. At the time when the appeal was submitted by the appellant under Section 39(3) of the Himachal Pradesh Town & Country Planning Act, 1977, hereinafter referred to as the ‘Act’, against the notice under Section 39 of the Act, the area in question was under Special Area Development Authority (SADA), Una and the powers of respondent No.2 vested with the Chairman-cum-Deputy Commissioner, Una, therefore no action should have been taken by the respondent No.1 on the notice under Section 39 of the Act. It was specifically stated by Ms Mukta, that instead of appeal being sent to the Chairman-cum-Deputy Commissioner, Una, it was forwarded to the Town & Country Planning office at Mandi by the office of respondent No.2 under a bonafide and mistaken belief. She further stated that her office will ensure that the papers are forwarded to the Chairman-cum-Deputy Commissioner, Una, who by virtue of powers vested in him of respondent No.2, shall deal with the said appeal at the earliest and in no case later than 31.8.2009. Before disposing the appeal, Chairman cum Deputy Commissioner, Una, shall hear the appellant either in person or through his learned Counsel and then shall dispose of the appeal by a well reasoned and speaking order. Ordered accordingly.



3. At this stage Mr. Kahol by referring to Section 39 of the Act, submitted that his client needs to be compensated for the expense incurred by him for the construction of soak pit which was legal, and without any lawful authority has been illegally demolished by the respondents 1 to 4. This position was seriously contested by the learned ADA, as well as by the Law Officer on behalf of respondent No.2. We say nothing in this behalf and leave this question open to be determined by the appellate authority who shall now be deciding the appeal after hearing the appellant as per statement of Ms Mukta, Law Officer and or by the Court of competent jurisdiction without being influenced by the decision of the complaint of the appellant by the District Forum below vide impugned order dated 2.8.2007 passed in Consumer Complaint No.15/2005 or this order.



4. Another grievance was also made on behalf of the appellant that the area of Plot No.9 as shown in the Plan, Annexure A, attached with the affidavit of Shri Subhasish Panda, Director, Town & Country Planning is shown in it to be 264 sq. mtrs., whereas on the spot it is only 200 sq. mtrs. Grievance is also made regarding the approach to the plot on the spot.



5. The necessity for giving brief account of these grievances of the appellant arose on account of the fact that the redressal of such grievances is not within the domain of Foras constituted under the Consumer Protection Act, 1986. Reason being that the application/appeal under Section 39(3) of the Act against the notice under Section 39 served by the respondent No.1 on the appellant is pending decision with the respondent No.2. Relevant provision of law as reproduced in the impugned order makes it obligatory on the part of the respondents 1 to 4 to decide the appeal of the appellant within a stipulated period which in the instant case has not been attempted by the respondents. Though respondent respondent No.2 ought to have decided the same, yet it is stated to have been sent inadvertently to the Town & Country Planning office at Mandi, and respondent-authorities now realizing this lapse on their part have now undertaken to send all the papers to the Chairman-cum-Deputy Commissioner, Una, for decision of this appeal, as ordered supra.



6. This is a statutory appeal lawfully made under the relevant provisions of law referred to above which enjoins upon the respondents 1 to 4 to decide the same within a prescribed period. Moreover, decision of this appeal is further necessitated on account of the fact that the entire grievance of the appellant which he has taken up in his complaint stands elaborated in the appeal and the same shall stand decided by the authorities of respondents 1 to 4 in view of the pleas raised therein. Thereafter it would be open for the appellant either to accept the verdict in his appeal or to avail remedy available to him under law.



7. So far impugned order is concerned, it has been passed by the District Forum without going into the merits of the case in depth. Since the respondents 1 to 4 had proceeded to demolish the soakpit put up by the appellant despite pendency of the statutory appeal at the instance of the appellant, the District Forum in our opinion has rightly ordered refund of demolition charges to the appellant. Refund of Rs.1040/- has been allowed solely on account of the fact that such demolition was premature as the application/appeal of the appellant was still pending adjudication with authorities as per law. In these circumstances the impugned order does not constitute dismissal of the complaint on merits, therefore none of the respondents can take any benefit from it. As aforesaid appeal will now be decided as per law within the time as fixed in this order.

8. For his other grievances about area of the plot or path etc., the appellant is at liberty to approach a Court of law for redressal of his grievance as per law. In such a situation he will also be entitled to claim benefit of Section 14 of the Limitation Act, 1963. Subject to these observations this appeal is disposed of.



Notice to respondents No.5,7 & 8 is discharged in this appeal.



Learned Counsel for the appellant as well as respondents 1 to 4 have undertaken to collect copy of this order free of cost from the Court Secretary as per Rules. A copy of this order likewise will be sent by the office to the respondent Nos. 5,7 & 8 by post as per rules.



Shimla,

July 14, 2009.



( Justice Arun Kumar Goel ) (Retd.)

President





( Saroj Sharma )

Member





/BS/ ( Chander Shekhar Sharma )

Member